Building Law Enforcement Capacity to Serve Immigrant Victims The National Immigrant Victims’ Access to Justice Partnership Atlanta, GA March 14, 2013

This project was supported by Grant No This project was supported by Grant No. 2009-DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Justice.

Training Overview Housekeeping and Faculty Introductions Goals and Expectations U visa Overview Crimes covered under the U visa U visa Benefits to Law Enforcement Completing the Law Enforcement Certification Identify and Address Difficult Issues Developing Agency U visa Protocols

Participant Goals and Expectations

Training Goals Understand the U visa certification and application process Understand barriers that prevent immigrant and refugee victims from cooperating with the criminal justice system Anticipate and overcome the challenges to signing certifications Discuss agency policies and protocols

U visa: An Overview

U visa (Crime Victim Visa) Basics Purpose: Why does it exist? Requirements: Who’s eligible for it? Application Process: How does one get it? General Facts Purpose: Why does it exist? Requirements: Who qualifies for a visa? Process: What does someone have to do to get one?

Congress created the U visa in 2000 to: Why does the U visa Exist? Congress created the U visa in 2000 to: Increase prosecution of perpetrators of crimes against immigrant victims Improve community policing and community relationships Increase immigrant victim crime reporting Minimize fear of deportation for immigrant victims of crime Enhance victim safety and keep communities safe Congress enacted VAWA self-petitioning (1994) and the U visa (2000) to

U visa Requirements Victim of a qualifying criminal activity Has been, is being, or is likely to be helpful in Detection, investigation, prosecution, conviction or sentencing Suffered substantial physical or mental abuse as a result of the victimization Possesses information about the crime Crime occurred in the U.S. or violated U.S. law

U visa Application Process Law Enforcement Certification- must have one Complete and submit application, which includes biometrics, additional documentation and fees (or waiver request) Decision from USCIS takes at least 6 months Re: Noelle’s comment, mention that other agencies/prosecutor’s can also certify the U visa

U Visa Application Victim Flow Chart Criminal activity occurs. IF: The victim has been helpful, is being helpful, or is likely to be helpful to law enforcement OR The victim is under 16 years of age and victim’s parent, guardian, or next friend has been helpful, is being helpful, or is likely to be helpful to law enforcement The victim is 21 years of age or older and is deceased due to the criminal activity or incapacitated or incompetent; the spouse and/or children under 21 of the victim have been helpful, are being helpful, or are likely to be helpful to law enforcement The victim is under 21 years of age and is deceased due to the criminal activity or incapacitated or incompetent; the victim’s spouse, children, parents, or unmarried siblings under 18 have been helpful, are being helpful, or are likely to be helpful to law enforcement THEN Victim (or legal representative) seeks I-918B, Law Enforcement Certification. (If victim is not working with a service provider, law enforcement officers can refer victims at this point.) Victim submits U-visa application to the Victims and Trafficking Unit of USCIS showing that the victim meets each of the U-visa eligibility requirements. The application includes*: U-visa application form: Form I-918 Law Enforcement Certification: Form I-918, Supplement B Documents related to victim’s identification Victim’s signed statement describing the facts of the victimization Any information related to victim’s criminal history, including arrests Any information related to victim’s immigration history, including prior deportation Any information related to victim’s health problems, use of public benefits, participation in activities that may pose national security concerns, and moral turpitude Any information related to the victim’s substantial physical or mental abuse suffered Other documentation such as police reports, medical records, letters of support from service providers. Eligible family members can also apply. * Other administrative documentation is also required. More information is available at www.legalmomentum.org. Law Enforcement provides victims with: 1. I-918 Law Enforcement Certification signed in blue ink and completed by a. the head of the certifying agency; OR b. a person in a supervisory role specifically designated by the head of the agency to sign certifications 2. Any supporting documentation such as reports and findings; and 3. In the case of 1b, a letter from the head of the agency designating another person to sign the certification (designee letter). Within about 6 months, victim receives decision on U-visa application. If approved, victim receives work permit. If applications for family members are approved and they are abroad, consular processing begins. After three years, U-visa holders (victims) apply for lawful permanent residence (“green card”). The application includes: Adjustment of Status Application: Form I-485 Any information related to the victim’s continuous presence in the U.S. since obtaining U-visa status Any information indicating that USCIS should exercise its discretion to grant lawful permanent residence Any information indicating that the U-visa holder has not unreasonably refused to cooperate with an ongoing investigation or prosecution Eligible family members can also apply. Within about 1 month, victim receives notice from USCIS confirming filing of U-visa application. Prepared by the National Immigrant Victims Access to Justice Partnership (2010). This project was supported by Grant No. 2009-DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Justice.

General Facts Only 10,000 U visas can be granted annually The U visa grants a temporary 4-year stay Only some U visa holders will qualify for legal permanent residency– no guarantee U.S. citizenship can only be attained after legal permanent residency for 5 years + proof of good moral character The cap has been reached in 2012

Crimes Covered Under the U Visa

What types of crimes are affecting the immigrant communities in your jurisdiction? The U visa is also known as the crime victim visa, so let’s dive in and talk about the crimes affecting your immigrant community

What’s the difference between the crimes that affect immigrants and U visa criminal activities? Crimes Affecting Immigrants U visa Criminal Activities Outlined in state or local criminal codes A specific code/statute enforced by local or federal law enforcement Often include domestic violence (which might be listed as assaults), robbery, burglary, violent assaults, sexual assaults, trafficking These are broad categories that, as listed, may appear in federal codes, state laws, or legislation like VAWA or TVPRA Intended to encompass the types of crimes affecting immigrants

Attempt, conspiracy or solicitation to commit any of these crimes Categories of qualifying criminal activities listed in the U visa statute Sexual assault Rape Incest Torture Female genital mutilation Felonious assault Manslaughter Murder Kidnapping Abduction Trafficking Involuntary servitude Slave trade Being held hostage Peonage False Imprisonment Blackmail Extortion Witness tampering Obstruction of justice Perjury Prostitution Domestic violence substantially similar, state/federal criminal statutes, Overlapping crimes Attempt, conspiracy or solicitation to commit any of these crimes Any similar activity

Are these criminal activities always reported Are these criminal activities always reported? Barriers Impacting Immigrant Victims of Crime Language barriers Lack of understanding of U.S. Laws Abuser’s power and control over victim Domestic violence Sexual assault in the workplace or at University Immigration status

How does the U visa help Law Enforcement?

U visa Benefits to Law Enforcement Encourages victims to report crimes Improves investigation and prosecution of violent crimes Increases potential to convict most dangerous criminals Demonstrates commitment to protecting immigrant community members Enhances immigrant community cooperation Reduces repeat calls and recanting victims Fosters community policing partnerships Enhances officer and community safety

How will you encounter a U visa certification in your work? You may be the first responder on a call involving an immigrant victim You may receive a request for certification from A victim advocate An immigration attorney A community based organization A victim

Completing the U Visa Certification

The Parts of the Certification Form U visa Toolkit, p.17 or Separate Document in Right Pocket of Folder Identify the victim or indirect victim (Part 1) Include agency and certifier information (Part 2) What criminal activity occurred? (Part 3) Determine helpfulness of the victim (Part 4) Determine if any family members were implicated in the crime (Part 5) Signature of certifier (Part 6) The ones in bold are the sections we will discuss

Law Enforcement Certification Form I-918 Supplement B

Identify the Victim or Indirect Victims (Part 1) Victim was killed or is incapacitated Next friend Family members of alien victims Bystanders Any state laws regarding indirect victims?

Ching Calleen J 08/28/1973 x LEAVE BLANK

Agency and Certifier Information (Part 2)

LEAVE BLANK x x x x Ching Calleen J 30309 Sheriff’s Office 08/28/1973 x Sheriff’s Office Captain Mike Supervisor/D.V.U. Sheriff Ric Bradshaw LEAVE BLANK 3228 Gun Club Road Atlanta GA 30309 (561) 688-3000 () 688-3000 x x x H-62632-11

Identify the criminal activity that occurred (Part 3) Law Enforcement has to consider: What is the crime? Is the crime a qualifying criminal activity under the U visa?

Attempt, conspiracy or solicitation to commit any of these crimes Categories of qualifying criminal activities listed in the U visa statute Sexual assault Rape Incest Torture Female genital mutilation Felonious assault Manslaughter Murder Kidnapping Abduction Trafficking Involuntary servitude Slave trade Being held hostage Peonage False Imprisonment Blackmail Extortion Witness tampering Obstruction of justice Perjury Prostitution Domestic violence substantially similar, state/federal criminal statutes, Overlapping crimes Attempt, conspiracy or solicitation to commit any of these crimes Any similar activity

LEAVE BLANK x x x x x Ching Calleen J 33406 Sheriff’s Office 08/28/1973 x Sheriff’s Office Captain Mike Supervisor/D.V.U. Sheriff Ric Bradshaw LEAVE BLANK 3228 Gun Club Road Atlanta GA 33406 (561) 688-3000 (561) 688-3000 x x x H-62632-11 x

12/19/12 sec. 741.28 Domestic Violence x x Atlanta, GA Husband strangled Mrs. Ching during a domestic dispute. As a result of Mrs. Ching being assaulted and strangled she suffered injuries to her neck. (see attached photographs)

Determine Whether the Victim is Helpful (Part 4) Review Statute and DHS Regulations: has been helpful, is being helpful or is likely to be helpful in the Detection, or Investigation, or Prosecution, or Conviction or Sentencing There is no degree of helpfulness required Law enforcement may complete U visa certification once they assess victim’s helpfulness The investigation or prosecution can still be ongoing

Some Examples of Helpfulness Calling 911 to report a crime Providing a statement to the police Filing a police report Seeking a protection order Providing information to prosecutors Serving as a witness in a prior prosecution or investigation

Is the helpfulness requirement met if: Victim reports a crime and there’s no further investigation Report is of a past crime; victim did not know or feel safe to report Perpetrator absconds or is subject to immigration removal The perpetrator is being prosecuted for a different crime Victim is not needed as a witness Victim fully discloses story only after better understanding his or her rights, the U visa and has had access to translated documents Victim is dead (indirect victim is applying) or perpetrator is dead Victim has a criminal history Victim is subject to immigration enforcement

Husband strangled Mrs. Ching during a domestic dispute. 12/19/12 sec. 741.28 Domestic Violence x x Atlanta , GA Husband strangled Mrs. Ching during a domestic dispute. As a result of Mrs. Ching being assaulted and strangled she suffered injuries to her neck. (see attached photographs) x x x x

Mrs. Ching called 911 for help during a domestic dispute Mrs. Ching called 911 for help during a domestic dispute. Upon arrival she provided information about the incident to the officer on scene and allowed the officer to take photographs of the injury to her neck.

Law Enforcement Certification is only one form of evidence. Victim of a qualifying criminal activity Has been, is being, or is likely to be helpful Suffered substantial physical or mental abuse as a result of the victimization Possesses information about the crime Crime occurred in the U.S. or violated U.S. law U Visa Certification: Introduction (Toolkit p.4) U Visa Quick Reference Guide (Toolkit p.12)

Hypothetical Case Scenario: 1 Lara

Lara entered the U. S. 7 years ago with a student visa Lara entered the U.S. 7 years ago with a student visa. One night after the visa had expired; she was walking home from waiting tables and was raped by a masked assailant. She never got a good look at the perpetrator. He whispered that he knew where she lived and told her he would tell her family back home the “filthy things” she had done if she told anyone. Four months later, Lara realized she was pregnant. When she began to miss late shifts at work and was disciplined by her boss, she finally shared with him what had happened to her. Her boss encouraged her to contact the police, and helped her call the police. Lara told the police everything she knew, but said she would not testify in court because she feared retaliation.

Hypothetical Case Scenario:2 Amelia and Carl

Amelia and Carl were living in poverty in their home country Amelia and Carl were living in poverty in their home country. Together they saved, borrowed and planned to pay a “coyote” $3,000 to bring each of them into the U.S. Once they arrived in the U.S., the “coyote” demanded an additional $3,000 to release and transport them to family members living in Louisiana. After the “coyote” had held Amelia and Carl in an abandoned house for 5 days, without food or water, their family was able to send the additional money. The coyote agreed to drive Amelia and Carl to their family. The coyote had been drinking heavily before the drive, and just before they reached their destination, the coyote’s van crashed into oncoming traffic. Amelia was sitting in the passenger seat and died instantly. The passengers in the other car had minor injuries. Police arrived on the scene, and took both Carl and the “coyote” into custody. Carl told the police many details of the coyotes’ illegal business enterprises.

Hypothetical Case Scenario:3 Joe and Alex

Joe and Alex are day laborers Joe and Alex are day laborers. They had both arrived in the United States on tourist visas, but seeing the opportunity for steady work, they decided to remain. For the past 4 years, they have been doing a number of construction jobs in cities throughout the southwest, and Joe has started a family. One payday they were robbed by three gang members who think of immigrants like Joe and Alex as “walking ATMs” because they don’t have bank accounts and carry a lot of cash. In addition to losing their wages, the two men were beaten. After their friends encouraged them, Joe and Alex reported the incident to local police. Joe and Alex were able to describe their assailants and a few days later, the police apprehended three people who matched the descriptions. Joe and Alex refuse to press charges, however, because the robbery happened in their neighborhood and they feared retaliation. Law enforcement can complete a U-visa certification even if the victim later found it too difficult to continue cooperating. To prevent further harm to victims, an exception to the ongoing cooperation requirement exists when victims can demonstrate that their inability or refusal to cooperate is not unreasonable. In some cases it may be unsafe for a victim to fully cooperate with law enforcement. Such situations include trauma or threats of retaliation.

Family Members Implicated in the Criminal Activity (Part 5)

Mrs. Ching called 911 for help during a domestic dispute Mrs. Ching called 911 for help during a domestic dispute. Upon arrival she provided information about the incident to the officer on scene and allowed the officer to take photographs of the injury to her neck. X Alphonso Ching Husband Defendant

Who can sign a U visa Certification? (Part 6) Any entity that investigates or prosecutes criminal activity may sign a certification: Judges State, Federal, Local LE Agencies and Prosecutors (Supervisor) Child or Adult Protective Services Federal agencies (EEOC, DHS, ATF, FBI) State or Federal Departments of Labor Other agencies that meet guidelines **frequent question I get is WHO can sign the certification. Should we add this slide?

Mrs. Ching called 911 for help during a domestic dispute Mrs. Ching called 911 for help during a domestic dispute. Upon arrival she provided information about the incident to the officer on scene and allowed the officer to take photographs of the injury to her neck. X Alphonso Ching Husband Defendant Captain Mike March 4, 2013

Identifying and Addressing Difficult Issues for Law Enforcement So we’ve gone over the key elements on the certification form, let’s talk about the issues that are beyond the certification form.

Common Concerns of Law Enforcement Does not want to confer citizenship on victim Certifications are going to create an administrative backlog Belief that undocumented immigration status is a criminal federal offense It’s the responsibility of Homeland Security, not of the local police Victim is uncooperative or no longer helpful Victim has a criminal history Crime occurred a long time ago or the case is closed Perpetrator cannot be found, identified, or is dead

Some ways to efficiently address common concerns Work with your agency to craft a U visa policy that addresses the concerns and creates a process Keep in mind that the application process is extensive, the certification is just one piece of evidence that the victim must provide Take note of where your certifications are coming from, create partnerships that are mutually beneficial Contact DHS or us– we are free resources for you

Developing Agency U visa Protocols So we’ve gone over the key elements on the certification form, let’s talk about the issues that are beyond the certification form.

Group Exercise What should an agency’s U visa certification protocol include? Read City of X, Law Enforcement Certification Protocol (Right Hand Pocket of Trainee Folder) Identify any problems with the protocol Note provision numbers How could the protocol be improved? What is missing?

Group Discussion When you consider drafting policy, what concerns would these people have? Your Chief/Sheriff Your District Attorney Other Officers Other Prosecutors Supervisors

Community Partnerships Identify community outreach tools to improve your agency’s protection of, and help for, undocumented immigrant victims.

Group Discussion How would you build meaningful relationships with immigrant victims and immigrant communities using the U visa policy? How would you share information about this policy with other law enforcement colleagues? How would your agency help other law enforcement agencies that do not yet have a U visa practice, policy, or protocol?

Resources Technical Assistance Call 202.274.4457or Email niwap@wcl.american.edu Materials on U visa and Immigrant Victims Legal Rights Visit www.iwp.legalmomentum.org Department of Homeland Security Sources Contact Scott Whelan at scott.whelan@uscis.dhs.gov Contact Thomas Pearl at thomas.pearl@dhs.gov USCIS U visa Fact Sheet “Questions & Answers: Victims of Criminal Activity, U Nonimmigrant Status” at www.uscis.gov

Evaluations Certificates